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Savvy entrepreneurs know that a board of advisers can provide their company with the “four C’s” that they so desperately need — credibility, contacts, counseling and cash – but they are not of equal importance.

On Monday, November 24, 2014, Procopio hosted a dinner and roundtable discussion, featuring Felicia Marcus, Chair of the State Water Resources Control Board. There were over 40 distinguished participants in attendance, see attached partial attendance list below Mr. Randy Record, Chair of the Metropolitan Water District of Southern California provided introductory comments to the issues of water supply, the drought and regional and state-wide responses to these issues.

Ms. Marcus reviewed existing condition related to California’s water resources and the challenges posed by the worst drought in modern times. Ms. Marcus highlighted the variability in rain patterns which makes water resources uncertain, the impact of increased demand due to population trends. Court cases including allocation disputes, resource mandates, CEQA and the effects of climate change. Ms. Marcus also discussed what California is doing in response to the effects of the drought, including conservation measures, increasing storage systems, groundwater management, and incentivized development of water recycling projects through financing opportunities.

After the presentation, there was a lively discussion by the participants, who highlighted individual methods adopted to conserve water including the incorporation of recycled water, adjusted irrigation/landscaping practices, landscaping software management tools, and proactive water management. Additionally, the participants discussed the development and incorporation of technology to promote water conservation (e.g. metering water usage), opportunities in desalination, and the possible advancement of such technologies through private-public partnerships.

Participants walked away with first-hand knowledge of the state’s plan for water management, and an understanding of the things that can be done to preserve and develop existing water resources. Ms. Marcus and the attendees found great value in the discussion, so much so, that a follow up meeting regarding water pricing or other critical water related topics are in the works.

Appellate court rules that San Diego County’s climate action plan lacks specific and enforceable mechanisms to achieve the plan’s goals. The County adopted the plan as a part of the 2011 General Plan update and the Sierra Club sued saying that the plan did not comply with the standards it set for itself. The Sierra Club complained that the County promised a plan that would have enforceable components, but what the County ultimately did was create a voluntary program thus, the plan failed to achieve the goals that it set.

The court ruled that the County’s commitment under the California Environmental Quality Act was not met because the plan lacked detailed deadlines and measures to ensure emission reductions. The court noted that it was an abuse of discretion to reject alternatives or mitigation measures that could reduce adverse impacts without supporting evidence. And, that the County rejected feasible mitigation measures offered by the Sierra Club. The court rejected the County’s position that it was speculative to consider the environmental impacts of the plan at this stage.

Universal Waste, a subset of hazardous waste, is commonly found in all business environments and if not properly managed can result in significant and costly enforcement action. The California Attorney General and county district attorneys are conducting investigations related to management of universal waste.

The governmental investigation includes “dumpster diving” to develop evidence of inappropriate waste management or disposal practices. At the conclusion of the investigation, a lawsuit is filed seeking damages and injunctive relief.

Because penalties can range up to $25,000 to $100,000 per day, per violation, we have seen multi-million dollar penalties, most notably: Walmart ($27.7M), Target ($22.5M), Walgreens ($16.6M), Rite Aid ($12.3M), CVS Pharmacy ($13.8M) and Lowe’s Home Centers ($18.1M). Recent U.S. Securities and Exchange Commission filings indicate that these investigations and lawsuits are now focused on

the telecommunications industry. Contractors to large target companies are likely to be included in future agency inspections.

What do I need to do to avoid violation? How will I know if I am being investigated? What do I do if I receive a letter from the Attorney General or enforcement notice from DTSC?

You won’t want to miss this informative and important presentation where we will take you through a typical universal waste government inspection and lawsuit process to help you understand what you can and should be doing to avoid or respond to such an investigation.

The State Water Resources Control Board (“SWRCB”) adopted a new Industrial General Permit (“General Permit”) on April 1, 2014, which replaces the 1997 version. Pursuant to the Federal Clean Water Act (“CWA”) sections 301 and 402, the General Permit authorizes discharges of industrial storm water to waters of the United States, so long as those discharges comply with all provisions of the General Permit. The General Permit takes effect on July 1, 2015, absent objection by the Regional Administrator of the U.S. Environmental Protection Agency.

In San Diego, the number of regulated facilities is projected to rise considerably, with the inclusion of light industry which will now be regulated – e.g. bread and other bakery products, chicken eggs, courier services, dairy farms, general warehousing and storage, roasted coffee and wineries. For a complete list go to: http://www.waterboards.ca.gov/water_issues/programs/stormwater/sic.shtml

Strict Liability for Prohibited Discharges

The General Permit strictly prohibits the following discharges of storm water to non-storm water associated with industrial activities: (1) all non-storm water discharges (“NSWD”) with limited exceptions ( e.g. potable water, incidental drift from cooling towers, irrigation drainage); (2) discharges and authorized NSWD’s that contain pollutants that cause or threaten to cause pollution, contamination, or nuisance as defined in section 13050 of the Water Code; (3) discharges that violate any discharge prohibitions contained in applicable Regional Water Board Water Quality Control Plans (“Basin Plans”) or statewide water quality control plans and policies; (4) discharges to Areas of Special Biological Significance; and (5) storm water and authorized NSWD’s regulated by the General Permit that contain hazardous substances equal to or in excess of a reportable quantity listed in 40 C.F.R., sections 110.6, 117.21, or 302.6.

Effluent Limitations

The General Permit requires Dischargers to implement Best Management Practices (“BMPs) when necessary, to support attainment of water quality standards, in a manner that reflects best industry practices considering technologies available and economic practicability.

Receiving Water Limitations

Dischargers must ensure that industrial storm water discharges and authorized NSWD’s do not cause or contribute to an exceedance of any applicable water quality standards in any affected receiving water. Dischargers must also ensure that industrial storm water discharges and authorized NSWD’s do not contain pollutants in quantities that threaten to cause pollution, or a public nuisance, or adversely affect human health or the environment.

CWA Section 303 (d) Limitations

To obtain coverage under the General Permit, Dischargers intending to discharge to a water body listed as CWA section 303 (d) impaired must demonstrate that: (1) the discharger has eliminated exposure to storm water of all pollutant(s) for which the water body is impaired and has documented and retained at the facility the procedures taken to prevent exposure onsite or; (2) the pollutant for which the water body is impaired is not present at that the Dischargers’ facility, and the Discharger has documented and retained this finding; or (3) the discharge of any listed pollutant will not cause or contribute to an exeedance of a water quality standard.

TMDL Limitations

Dischargers located in a watershed for which a CWA section 303 (d) Total Maximum Daily Load (“TMDL”) has been approved by the U.S. EPA, must comply with any applicable TMDL-specific permit requirements that are incorporated into the General Permit now or in the future.

Electronic Reporting Required

The General Permit requires the development of a site-specific Storm Water Pollution Prevention Plan (“SWPP”), which must include information that demonstrates compliance with the requirements of this General Permit. The SWPP must be submitted electronically via the Storm Water Multiple Application and Report Tracking System (“SMARTS”)[1], including sampling/monitoring data, and reports. Such electronic reporting facilitates public enforcement of the General Permit.

Qualified Industrial Storm Water Practitioner (“QISP”)

Level 1 and Level 2 (i.e. Dischargers who have exceeded numeric action levels) must appoint a QISP to ensure compliance with the General Permit. A QISP is also required to assist a new discharger to determine coverage eligibility for discharges to an impaired water body.

Compliance Groups

Any group of Dischargers of the same industry type may form Compliance Groups. Such Groups may consist of Dischargers that operate facilities with similar types of industrial activities, pollutant sources, and pollutant characteristics. Compliance groups allow businesses engaged in similar industrial activities to come together to reduce the cost of compliance through information-sharing, monitoring, and other activities.

The new General Permit will substantially broaden the scope of facilities that must comply with the aforementioned specifications. Please contact John Lormon or Hazel Ocampo, at (619) 515-3217 or (619) 515-3298, respectively if you wish to discuss how these changes may affect your business.

[1] The SMARTS program regulates storm water discharges from various locations, including industrial facilities. The program also processes, reviews, and updates terminating Notices of Intent (NOIs), annual reports, and maintains the billing status of each discharger.

The San Diego Regional Water Quality Control Board (SDRWQCB) Municipal Storm Water Permit has created new opportunities to meet storm water regulations by making available a selection of offsite mitigation options known as “Alternative Compliance.”How these programs and mitigation options will be approved, funded, m…anaged, and implemented breaks new ground for developers, municipalities, and regulatory agencies.Procopio invites you to come roll up your sleeves with SDRWQCB Executive Officer David Gibson and other expert panelists to participate in a facilitated workshop where we will explore opportunities with real-world examples of alternative compliance projects while addressing key obstacles and questions about how to build a successful program or project.

On June 12, 2014, John Lormon moderated a panel discussion on Environmental Risks and Liabilities for Real Estate Transactions as part of Procopio’s Environmental Breakfast Club series. The program was jointly developed by the following industry leaders who participated as panelists: Dan Johnson, the Vice President and Southwest Environmental Services Director for SCS Engineers; Marc Brutten, Founder and CEO of Westcore Properties; and Matt Slakoff, a Principal at Cavignac & Associates. Ryan Marcos, Vice President of Environmental Risk Management at Union Bank, also helped develop the program but was unable to attend.

The interactive discussion included the following current topics:

Steps necessary to conduct All Appropriate Inquiries under the new EPA rule and 2013 ASTM standard in order to preserve the federal liability protections under CERCLA and SARA;

Additional methods to ensure liability protections under California law when purchasing or leasing a contaminated property to cover the gaps left after All Appropriate Inquiries are completed;

The key criteria used by investors, developers and lenders to evaluate whether to purchase and finance projects on contaminated properties; and,

Strategies for application of environmental insurance policies for real estate transactions and the cleanup of contaminated properties.

CleanTECH San Diego, Scripps Institution of Oceanography at UC San Diego, and Procopio invite you to a timely discussion with some of the world’s leading climate scientists about a powerful weather phenomenon:

There are approximately 56.2 million acres in the United States held in trust for Indian Tribes and individuals, which range in size from just over an acre to the 16 million acre Navajo Nation Reservation. The amount of Tribal lands continues to grow as the federal government reviews and approves trust applications each year. In addition, the U.S. Department of Interior Buy-Back Program (created in response to the Cobell vs Salazar Settlement) intends to add millions of acres of Tribal trust lands. The application of environmental law to these lands is unique in comparison to private fee land due to the extreme shifts in federal policy regarding Tribal sovereignty over the past 200 years. Federal environmental laws are applicable to Tribal lands but State and local laws do not apply in most cases unless the impacts of actions spill over to non-Tribal lands.

This informative conference provides a foundational understanding of Tribal sovereignty and the applicability of environmental laws to Tribal lands, insight into the relationship between Tribes and federal/state agencies, practical tips for preparing/reviewing environmental impact documentation and resource management plans.

What You Will Learn

Tribal sovereignty as it applies to environmental regulation and Tribal land use

Detailed analysis of the applicability of specific federal environmental laws to Tribal lands

Detailed analysis of requirements for environmental impact review for projects on Tribal lands or Tribal projects off Tribal lands

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As the global appetite for energy and water continues to grow, so does the demand to change the way it is delivered, conserved and consumed. Adapting to this changing environment presents significant challenges and opportunities. For more information on Procopio visit us at http://www.procopio.com.

Although the information contained herein is provided by professionals at Procopio, the content and information should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.